Saturday, June 18, 2011

The Canada - U.S. Boundary Waters Treaty and the the International Joint Commission



The Boundary Waters Treaty (BWT) [FN1] between Great Britain, on behalf of Canada and the United Sates is a unique and in its day far reaching.  It established the International Joint Commission (IJC). [FN2]  Composed of six members, three from Canada and three from the United States, the IJC was created as an adjudicative body that can be employed for non-binding investigations as well as for binding arbitration. [FN3]  Indeed, the IJC asserts that it “prevents and resolves disputes between the United States of America and Canada under the 1909 Boundary Waters Treaty and pursues the common good of both countries as an independent and objective advisor to the two governments.” [FN4]

Furthermore, the IJC assists the two governments in averting and resolving transboundary disputes, principally concerning water and environmental issues, by embarking upon inquiries and analyses, [FN5] providing advice and by authorizing specific facilities across the five thousand mile Canadian-American frontier of transboundary waters. [FN6] Additionally, the IJC provides an awareness of emerging transboundary matters to both governments. [FN7] However, in order for the IJC to act, it must receive a referral from either or both countries. [FN8] These referrals involve both environmental and non-environmental conflicts. To date, the IJC has had approximately one hundred referrals. [FN9]

The IJC's ability to conduct an in depth study of each referral, to hold public hearings, [FN10] and to afford parties the opportunity to submit amicus briefs, [FN11] provides it with powers that courts simply lack. The *1697 latter can only deal with narrow legal issues, and in the United States, only when those issues raise a case or controversy. [FN12] In addition, once the Commission receives a referral, its jurisdiction is extremely broad, and unlike courts, it is unconstrained by constitutional provisions or legislative mandates. [FN13]

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[FN1]. Treaty Between the United States and Great Britain Relating to Boundary Waters between the United States and Canada, pmbl., U.S.-Gr. Brit., Jan. 11, 1909, 36 Stat. 2448 [hereinafter Boundary Waters Treaty].

[FN2]. Boundary Waters Treaty, supra note 1, art. III.

[FN3]. Noah Hall, Bilateral Breakdown: U.S.-Canada Pollution Disputes, 21 NAT. RESOURCES & ENV'T. 18, 19 (2006).

[FN4]. The International Joint Commission, Mission Statement, available at http://www.ijc.org/en/home/main_accueil.htm (last visited May 28, 2009).

[FN5]. For example, United States Commissioner Allen Olson and Canadian Commissioner Jack Blaney have been using their “good offices” on behalf of the IJC to seek a resolution to a problem between North Dakota and the Province of Manitoba over North Dakota's Devil's Lake. Interview with Allen I. Olson, I.J.C. Commissioner, in Detroit, Mich. (Feb. 5, 2009).

[FN6]. The joint border includes some 150 lakes and rivers, which comprise ninety percent of the surface fresh water in North America, as well as over twenty percent of the earth's useable surface fresh water. Hall, supra note 3, at 18.

[FN7]. International Joint Commission, Canada and United States, 2003 Annual Report, available at http://www.ijc.org/php/publications/pdf/ID1555.pdf (last visited May 29, 2009).

[FN8]. Referrals to the IJC for non-binding recommendations may occur “whenever either the Government of the United States or the Government of the Dominion of Canada shall request.” Boundary Waters Treaty, supra note 1, art. IX. Due to the requirement of a reference, individuals cannot request the IJC to act. Id. Nevertheless, a solitary citizen or groups may petition their respective governments for a reference. Id. art. X. However, such requests may, in some cases, raise delicate political questions.

[FN9]. Interview with Frank Bevacqua, Public Information Officer for the IJC's Washington office, at 2401 Pennsylvania Avenue, N.W., Fourth Floor, Washington, D.C. 20440 (Jan. 15, 2008).

[FN10]. See, e.g., Mimi Larsen Becker, The International Joint Commission and Public Participation: Past Experiences, Present Challenges, Future Tasks, 33 NAT. RESOURCES J. 235, 237 (1993); The Right Honourable Herb Gray, Proceedings of the Canada-United States Law Institute Conference on Understanding Each Other Across the Largest Undefended Border in History, 31 CAN.-U.S. L.J. 287, 299 (2005) (observing that only when the public is “vigilant” can international agreements be successful).

[FN11]. At the February 5, 2009, conference giving rise to this Symposium issue, I directed a question to U.S. Commissioner Allen I. Olson regarding a party's ability to submit an amicus brief. He responded that in his view the submission of amicus briefs is just another form of public participation. Interview with Allen I. Olson, supra note 5.

[FN12]. U.S. CONST. art. III, § 2, cl. 1.

[FN13]. See, e.g., Mathers v. Texaco, Inc., 421 P.2d 771 (N.M. 1966) (construing statutory groundwater rights); Fundingsland v. Colo. Ground Water Comm'n, 468 P.2d 835 (Colo. 1970)Baker v. Ore-Ida Foods, Inc., 513 P.2d 627 (Idaho 1973) (construing groundwater rights pursuant to Idaho's Groundwater Act).
(interpreting Colorado's Constitution in assessing the prior appropriation doctrine);
 


The United States Supreme Court

            The United States Supreme Court has heard 137 cases under its Original Jurisdiction.[1]  The majority of the original jurisdiction cases from the west and southwest involve  interstate water disputes. e.g., Kansas v. Colorado case (Original No. 105) and the Arizona v. California case (Original No. 8).  Indeed these cases address a problem that has bedeviled the American west for over one hundred years: the apportionment of river water;  not for potable or drinking purposes but mostly for agricultural purposes in a desert to semi-desert environment. 

Water appropriation in the United States is rooted in two predominant norms.  The region east of the Mississippi River generally follows the common law riparian legal regime,[1] while the western portion of the country – west of the 100th meridian[2] - follows the doctrine of prior appropriation.[3]  These two doctrines are intertwined because Kansas is a mixed jurisdiction.


[1]           The essence of the common law riparian right doctrine and water allocation scheme is that a person who owns land on, adjacent to, alongside or crossed by a natural watercourse has a legal right to access and use the water running through the property.  See e.g., Baltimore & O.R. Co. v. Chase, 43 Md. 23, 1875 WL 4912 (Md. 1875), at * 5, stating that

These riparian rights, founded on the common law, are property, and are valuable, and while they must be enjoyed in due subjection to the rights of the public, they cannot be arbitrarily or capriciously destroyed or impaired. They are rights of which, when once vested, the owner can only be deprived in accordance with the law of the land, and, if necessary that they be taken for public use, upon due compensation.
[2]           The 100th meridian is a line of longitude that is 100° west of Greenwich, England.  The meridian extends from the Arctic Sea south to and crosses the following states in the United States, from north to south: North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, the Texas / Oklahoma border and continues through Texas into Coahuila, Mexico at 28°0’N 100°0’W.  It separates the wet east from the arid west.  See generally, Wallace Stegner, Beyond the Hundredth Meridian: John Wesley Powell and the Second Opening of the West (1954).
[3]           The general principle of the doctrine of prior appropriation is that water rights are unconnected to land ownership, and can be sold or mortgaged like other property.  At its core is the principle of first in time, first in right.  That is, the first person to use a quantity of a river’s water for a beneficial use has the right to continue to use that quantity of water for that purpose, and is known as the “senior appropriator”.  Subsequent users, known as “junior appropriators” – in a line of five appropriators the third one in time is junior to the second, and so on – can use the water remaining after the senior appropriator has received his original allotment, for their own beneficial purposes provided that they do not impinge on the rights of  more senior users.  Beneficial use is commonly defined as agricultural, industrial or household use.  See e.g., Montana v. Wyoming, supra note 1 at 131 S. Ct. 1772.

As is typical west of the 100th meridian, the doctrine of appropriation has governed water rights in [the West] . . .  As relevant here, the doctrine provides that rights to water for irrigation are perfected and enforced in order of seniority, starting with the first person to divert water from a natural stream and apply it to a beneficial use (or to begin such a project, if diligently completed) [citations omitted] . . . “Priority of appropriation for beneficial uses shall give the better right” . . . The scope of the right is limited by the concept of “beneficial use.” That concept restricts a farmer “to the amount of water that is necessary to irrigate his land by making a reasonable use of the water.” [Citation omitted].